The Trade Remedies (Reconsideration and Appeals) (EU Exit) Regulations 2019

Explanatory Note

(This note is not part of these Regulations)

These Regulations provide for the reconsideration of decisions taken by the Trade Remedies Authority (TRA), when established, under Schedules 4 and 5 to the Taxation (Cross-border Trade) Act 2018 (“the Act”), the Trade Remedies (Dumping and Subsidisation) (EU Exit) Regulations 2019 (“the Dumping and Subsidisation Regulations”) and the Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) Regulations 2019 (“the Safeguards Regulations”). They also provide for decisions made by the TRA and the Secretary of State under such legislation to be appealed to the Upper Tribunal. The TRA itself will be established by the Trade Bill when it receives Royal Assent.

The Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (“ADA”) and the Agreement on Subsidies and Countervailing Measures (“SCMA”) in Annex 1A to the Marrakesh Agreement establishing the World Trade Organization (concluded on 15 April 1994, entered into force 1 January 1995) (“WTO Agreement”) require WTO Members to have in place an independent process to review decisions made by their investigating authority under ADA and SCMA. Consistent with those international agreements, these Regulations provide for certain decisions on anti-dumping and countervailing measures made under Schedule 4 to the Act and the Dumping and Subsidisation Regulations to be reconsidered by the TRA and appealed to the Upper Tribunal. These Regulations also provide for reconsideration and appeals of certain decisions made under Schedule 5 to the Act and the Safeguards Regulations, which implement the Agreement on Safeguards (“SGA”) in Annex 1A to the WTO Agreement, even though SGA does not require WTO Members to have in place an independent review process.

Part 1 (Introductory) sets out the introductory provisions of the Regulations and includes definitions that apply throughout.

Part 2 (General provisions and reconsideration by the TRA) sets out general provisions in relation to the TRA's reconsideration of decisions made by it, such as the TRA's treatment of confidential information and the requirement to maintain a public file. This Part also provides for who can apply for reconsideration, for the procedures to be followed by the TRA when deciding whether to accept or reject an application for reconsideration, and for the conduct of reconsideration.

Part 3 (Appeal to the Upper Tribunal) provides for who may appeal to the Upper Tribunal and the standard of review adopted by the Tribunal. Most decisions made by the TRA must first go through reconsideration before they can be appealed.

Part 4 (Transitional provisions relating to the TRA) temporarily modifies the effect of these Regulations pending the establishment of the TRA. The modified effect is such that the Secretary of State will reconsider determinations or decisions made under Schedules 4 and 5 to the Act as modified by the Taxation (Cross-border Trade) Act 2018 (Appointed Days No. 4 and Transitional Provisions) (Modification) (EU Exit) Regulations 2019 and the Taxation (Cross-border Trade) Act 2018 (Appointed Days No. 6 and Transitional Provisions) (Modification) (EU Exit) Regulations 2019, the Dumping and Subsidisation Regulations as modified by Part 13 of those Regulations and the Safeguards Regulations as modified by Part 10 of those Regulations. This Part also provides for certain decisions made under such legislation to be appealed to the Upper Tribunal.

Schedule 1 lists the decisions made by the TRA that are subject to reconsideration and appeal. Schedule 2 lists the determinations made by the Secretary of State that are subject to appeal.

An impact assessment has not been prepared for this instrument as the expected impact of the trade remedies system has already been assessed in the impact assessment accompanying the Act.

A copy of the Explanatory Memorandum is published alongside this instrument on www.legislation.gov.uk. Further information is available from the Department for International Trade, 3 Whitehall Place, London SW1A 2AW and on the gov.uk website (www.gov.uk).